High court backs conviction of judge

Dan Freedman, EXAMINER WASHINGTON BUREAU

Published 4:00 am, Wednesday, June 21, 1995

1995-06-21 04:00:00 PDT SAN JOSE -- WASHINGTON - The Supreme Court on Wednesday reinstated the conviction of a Bay Area judge for disclosing a wiretap to a distant relative, an alleged organized crime figure.

By an 8-1 vote, the court overturned the 9th Circuit U.S. Court of Appeals, which last year reversed U.S. District Judge Robert Aguilar's conviction on the grounds that court authorization for the FBI wiretap had expired at the time he revealed it.

However, by a separate 6-3 majority, the court affirmed the 9th Circuit court's reversal of Aguilar's conviction for obstructing justice by lying to FBI agents about what he knew of the wiretap. The court said Aguilar's lying did not amount to a violation of federal law, which requires knowledge that the lies would affect a grand jury proceeding.

"If the defendant lacks knowledge that his actions are likely to affect the judicial proceedings, he lacks the requisite intent to obstruct," Chief Justice William Rehnquist said in the court's opinion.

Jailed judges still paid&lt;

Aguilar, 64, was appointed by President Jimmy Carter in 1980. His case has run a circuitous path through the federal courts since June 13, 1989, when a federal grand jury returned an eight-count indictment against him for using his position as a judge to help two friends, former Teamsters official Michael Rudy Tham and Abe Chapman, now-deceased, a reputed former Mafia hit man and a relative of Aguilar's by marriage, whose real name was Abraham Chalupowitz.

FBI fraud investigation&lt;

The two had been under investigation by the FBI as part of a nationwide health care provider fraud investigation, according to a Justice Department brief.

A federal jury in 1990 acquitted Aguilar on one count and deadlocked on the other seven. A subsequent retrial brought convictions on two counts:

*First, that Aguilar in 1988 sent a warning to Chapman through his nephew, Steve Aguilar, that FBI agents were tapping Chapman's phone.

*Second, that Aguilar lied in a subsequent interview with FBI agents about what he knew of the wiretap, as well as his efforts to have Tham's prior convictions for union corruption overturned.

Aguilar appealed and a panel of U.S. Court of Appeals for the 9th Circuit in San Francisco gave a split ruling. But after a rehearing, the appeals court on April 19, 1994, voted to overturn both convictions, ruling that Aguilar's conduct did not fit the specifications of the crimes with which he was charged.

In a separate opinion, Justice John Paul Stevens argued that the high court should sustain the 9th Circuit's reversal of both convictions.